Porter Wright News – Technology Law Sourcehttps://www.technologylawsource.com
Mapping the evolving legal landscapeThu, 12 Sep 2019 14:10:38 +0000en-UShourly1https://wordpress.org/?v=4.9.11Big changes for internet shoppinghttps://www.technologylawsource.com/2018/06/articles/porter-wright-news/big-changes-for-internet-shopping/
Fri, 22 Jun 2018 18:30:24 +0000https://www.technologylawsource.com/?p=5043On June 21, 2018, the U.S. Supreme Court ruled in Wayfair v. South Dakota that internet and catalogue retailers can be required to collect sales taxes from customers in states where they have no physical presence. In plain English, in most situations, no more tax-free shopping on the internet. Buyers have always technically been required to pay a use tax to their state if no sales tax was collected by the seller. This decision overrules two older decisions that allowed retailers to avoid collecting sales tax on customers outside of its home state and outside other states where the retailer had employees, a store, a warehouse or some other physical presence. This is likely the most significant state and local tax case in 25 years and will have a profound impact on businesses who sell taxable goods or services online. Further, there are implications for mergers and acquisitions and could have a chilling effect when the potential buyer of a company realizes that the target has major sales tax exposure.

In Wayfair v. South Dakota, South Dakota enacted a law that required all merchants to collect its sales tax if they had more than $100,000 in annual sales or more than 200 individual transactions in the state. State officials sued three large online retailers — Wayfair, Overstock.com and Newegg — for violating the law. In a 5-4 decision, Justice Kennedy stated that with every passing year the “physical presence rule becomes further removed from economic reality” resulting in significant losses …

On June 21, 2018, the U.S. Supreme Court ruled in Wayfair v. South Dakota that internet and catalogue retailers can be required to collect sales taxes from customers in states where they have no physical presence. In plain English, in most situations, no more tax-free shopping on the internet. Buyers have always technically been required to pay a use tax to their state if no sales tax was collected by the seller. This decision overrules two older decisions that allowed retailers to avoid collecting sales tax on customers outside of its home state and outside other states where the retailer had employees, a store, a warehouse or some other physical presence. This is likely the most significant state and local tax case in 25 years and will have a profound impact on businesses who sell taxable goods or services online. Further, there are implications for mergers and acquisitions and could have a chilling effect when the potential buyer of a company realizes that the target has major sales tax exposure.

In Wayfair v. South Dakota, South Dakota enacted a law that required all merchants to collect its sales tax if they had more than $100,000 in annual sales or more than 200 individual transactions in the state. State officials sued three large online retailers — Wayfair, Overstock.com and Newegg — for violating the law. In a 5-4 decision, Justice Kennedy stated that with every passing year the “physical presence rule becomes further removed from economic reality” resulting in significant losses to the states.

Many states have already enacted legislation that requires sales tax collection for most retailers making sales into the state. Because these statutes are no more onerous than South Dakota’s statute that was upheld on June 21, 2018, the decision makes these statutes now no longer constitutionally prohibited. Further, this decision could be applied retroactively in some states whose legislation required collection beginning before now. That said, there have been some efforts within the Streamlined Sales Tax Project to get states to come together to agree to enforce these statutes prospectively only if Wayfair was decided the way it has been decided. Stay tuned for further developments.

]]>ADA Website filings show no sign of slowing downhttps://www.technologylawsource.com/2018/01/articles/porter-wright-news/ada-website-filings-show-no-sign-of-slowing-down/
Tue, 09 Jan 2018 19:46:47 +0000https://www.technologylawsource.com/?p=4905Regardless of industry, website accessibility has become an area of focus for ADA litigation. My colleague, Jamie LaPlante, was recently interviewed by the Bristol Herald Courier regarding a filing against Highlands Union Bank in the U.S. District Court in Abingdon, Virginia, where the plaintiff is a blind man from Fairfax county. The case follows a similar fact pattern to the 2017 Florida caseagainst Winn-Dixie where a federal judge ruled the supermarket chain failed to make its website accessible due to the site’s lack of integration with screen reader technology. The last few years have seen an increase in threats of litigation and filings of lawsuits of this nature. We thought it was worth sharing this with you; check out the full article here.…Continue Reading →]]>

Regardless of industry, website accessibility has become an area of focus for ADA litigation. My colleague, Jamie LaPlante, was recently interviewed by the Bristol Herald Courier regarding a filing against Highlands Union Bank in the U.S. District Court in Abingdon, Virginia, where the plaintiff is a blind man from Fairfax county. The case follows a similar fact pattern to the 2017 Florida caseagainst Winn-Dixie where a federal judge ruled the supermarket chain failed to make its website accessible due to the site’s lack of integration with screen reader technology. The last few years have seen an increase in threats of litigation and filings of lawsuits of this nature. We thought it was worth sharing this with you; check out the full article here.

May 18: Big Data, Data Analytics & the Law 2016: What Your Company Needs to Know About the Evolution of the Next Big Thing

“Big data” is one of today’s most prevalent buzzwords across virtually all industries worldwide. But who truly understands what big data is and how it’s used? How is information collected, stored and analyzed? How are businesses leveraging big data in the workplace and the marketplace? How should companies balance data-driven trend-spotting against consumer protection? What laws or ethical frameworks apply to the use of big data, and how can you be sure your company is complying with them? This seminar provides an introduction to big data analytics, to the legal and strategic issues that big data raises for business, and to the ways that companies can position themselves to handle these challenges. It then zeros in on the use of big data in the modern workplace to illustrate how some of these issues play out in a context familiar to many companies.

Speakers: Dennis Hirsch, Professor of Law, Faculty Director of the Program on Data, Law, Ethics and Policy (DLEAP), The Ohio State University Moritz College of Law and Brian Hall, Porter Wright Morris & Arthur LLP

An Introduction to Big Data and to the Legal and Strategic Issues it Raises for Business

Porter Wright continues its tradition of providing cutting-edge information about how technology affects your business with the 2016 Technology Seminar Series, beginning May 18.

This year’s sessions are:

May 18: Big Data, Data Analytics & the Law 2016: What Your Company Needs to Know About the Evolution of the Next Big Thing

“Big data” is one of today’s most prevalent buzzwords across virtually all industries worldwide. But who truly understands what big data is and how it’s used? How is information collected, stored and analyzed? How are businesses leveraging big data in the workplace and the marketplace? How should companies balance data-driven trend-spotting against consumer protection? What laws or ethical frameworks apply to the use of big data, and how can you be sure your company is complying with them? This seminar provides an introduction to big data analytics, to the legal and strategic issues that big data raises for business, and to the ways that companies can position themselves to handle these challenges. It then zeros in on the use of big data in the modern workplace to illustrate how some of these issues play out in a context familiar to many companies.

Speakers: Dennis Hirsch, Professor of Law, Faculty Director of the Program on Data, Law, Ethics and Policy (DLEAP), The Ohio State University Moritz College of Law and Brian Hall, Porter Wright Morris & Arthur LLP

An Introduction to Big Data and to the Legal and Strategic Issues it Raises for Business

This section of the seminar begins with a user-friendly, non-technical introduction to the methods and capabilities of big data analytics. It provides an overview of the tremendous benefits that big data analytics can create, and of the risks that it can pose to privacy, cyber security, and basic fairness. At each stage, it uses examples. The section emphasizes the strategic importance for business of understanding these risks and of addressing them pro-actively. It provides an overview of the laws that could apply to business use of big data analytics, and the gaps in those laws. Finally, it offers initial suggestions as to how a company can develop a framework for assessing when its use of big data is likely to benefit the business, and when it will pose undue risk to customers and so to the company itself.

Topics include:

A general, non-technical, introduction to big data

Opportunities and risks that big data and data analytics can generate for businesses

How existing laws apply to business use of big data analytics; gaps in the legal framework

Developing a risk management, cost-benefit approach to the use of big data

How to position your company for the future regulation of big data

Big Data in the Modern Workplace: Real Rewards Come With Legal Risks

A lot has happened in the world of “Big Data” for human resources professionals in the year since we last presented this topic as part of Porter Wright’s 2015 Technology Seminar Series. There is an ever increasing range of new services and products entering the market promising employers the ability to make more data-driven, and therefore presumably reliable, decisions. For instance, data analytics firms promise that employers using their services and products will reduce employee turnover by helping them identify applicants who will be the best fit for their organizations. Various wearable device manufacturers and mobile app developers also promise employers they can increase employee productivity, reduce the number of employee accidents, and reduce their health insurance costs by incorporating their profits into wellness programs.

But at what cost do these promised advantages come? In January 2016, the FTC issued its Report on Big Data, which identifies potential ways that employer reliance on Big Data tools risk violating federal employment laws, such as Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the American with Disabilities Act, the Genetic Information Nondiscrimination Act, the Fair Credit Reporting Act, and the Federal Trade Commission Act as well as federal and state privacy laws. As it relates to federal discrimination laws, the EEOC has identified as an enforcement priority the elimination of barriers to employment opportunities, though such means as screening and selection devices, tests, and other practices that employers may use to recruit and hire. As part of this priority, the EEOC has promised to study “internet-based assessments that rely on big data analytics and new technologies” to determine the likelihood that these devices are causing employment discrimination. This presentation will address the federal and state legal landscape as it relates to Big Data and the steps that employers can take to reduce the risk and avoid class actions challenging their use of Big Data tools.

Upcoming technology seminar series events:

June 15: Recent Developments in Data Breach Law and Practical Pointers When Data is Breached.
The latest in the legal landscape of data breach, cases and legislative initiatives, and thoughts on how to respond in the event of data breach.

July 13: The Latest in Trade Secret Law, Including Best Practices and Legal Protection of Software
The changing landscape of patent protection for software and the importance of secret protection in business.

If you’d like to learn more about our upcoming seminar series, contact Porter Wright.

]]>No ifs ands or butts about it: Ohio plaintiffs must prove injuries are “reasonably foreseeable”https://www.technologylawsource.com/2015/05/articles/porter-wright-news/no-ifs-ands-or-butts-about-it-ohio-plaintiffs-must-prove-injuries-are-reasonably-foreseeable/
Wed, 27 May 2015 19:08:07 +0000http://www.technologylawsource.com/?p=2404Our colleagues on Porter Wright’s product liability team shared an alert about a decision that should be of interest to our manufacturing readers. In Butts v. OMG, Inc., et al., the Sixth Circuit Court of Appeals clarified that a plaintiff’s burden, when bringing a design defect or inadequate warnings claim under the Ohio Products Liability Act, is to prove the injury was reasonably foreseeable to the manufacturer. Read more…Continue Reading →]]>

Our colleagues on Porter Wright’s product liability team shared an alert about a decision that should be of interest to our manufacturing readers. In Butts v. OMG, Inc., et al., the Sixth Circuit Court of Appeals clarified that a plaintiff’s burden, when bringing a design defect or inadequate warnings claim under the Ohio Products Liability Act, is to prove the injury was reasonably foreseeable to the manufacturer. Read more

]]>First Tech Seminar Series focuses on big datahttps://www.technologylawsource.com/2015/04/articles/porter-wright-news/frist-tech-seminar-series-focuses-on-big-data/
Wed, 15 Apr 2015 13:00:19 +0000http://www.technologylawsource.com/?p=2363Our colleague at Employer Law Report, Brian Hall, conveys his thoughts about the first installment of our 2015 Technology Seminar Series. This May 13 seminar focuses on big data, data analytics and the law: What your company needs to know about the next big thing. Read more about what Brian plans to discuss at the seminar.…Continue Reading →]]>

]]>Porter Wright launches Antitrust Law Sourcehttps://www.technologylawsource.com/2014/09/articles/porter-wright-news/2016/
Mon, 08 Sep 2014 10:15:04 +0000http://www.technologylawsource.com/?p=2016We wanted to take a moment to announce our newest endeavor, Antitrust Law Source. Antitrust Law Source is a new site designed for visitors to quickly and easily learn about developments in this growing arena. The site will focus primarily on news and legal updates related to antitrust in a podcasting format. The podcasts will feature a variety of insights, educational offerings, discussions and interviews with thought leaders across a variety of industries.

The site is prepared by members of our firm’s Antitrust Practice Group and will feature news and information on a range of areas, including:

We wanted to take a moment to announce our newest endeavor, Antitrust Law Source. Antitrust Law Source is a new site designed for visitors to quickly and easily learn about developments in this growing arena. The site will focus primarily on news and legal updates related to antitrust in a podcasting format. The podcasts will feature a variety of insights, educational offerings, discussions and interviews with thought leaders across a variety of industries.

The site is prepared by members of our firm’s Antitrust Practice Group and will feature news and information on a range of areas, including:

The worlds of social media and litigation have collided. Social media evidence is used in employment discrimination lawsuits, in divorce and custody cases, in criminal cases – and intellectual property cases are won and lost based on the information disclosed on social media sites. Like it or not, social media is an aspect of litigation that is here to stay. Sara Jodka, Colleen Marshall and Jay Yurkiw will walk you through how social media affects the way companies prepare for and engage in litigation, including the good, the bad and the ugly. This session will provide guidance about how you can make sure that your company’s social media use will not get the company into hot water. Presenters also will share helpful insights regarding what to do about social media when litigation is filed and identify the biggest social media in litigation hazards.

What the dot? Protecting your IP rights in a digital society

July 16

What do you get when you put together intellectual property, technology and social media? All too often, the end result of this concoction is a legal battle. This seminar will explore issues such as the impact of ICANN’s new generic top-level domain (gTLD) program and what it means for your web-based branding; whether companies that …

Porter Wright continues its tradition of providing cutting-edge information about how technology affects your business with the 2014 Technology Seminar Series, beginning June 18. This year’s sessions are:

Social media in litigation: a shield and a sword

June 18

The worlds of social media and litigation have collided. Social media evidence is used in employment discrimination lawsuits, in divorce and custody cases, in criminal cases – and intellectual property cases are won and lost based on the information disclosed on social media sites. Like it or not, social media is an aspect of litigation that is here to stay. Sara Jodka, Colleen Marshall and Jay Yurkiw will walk you through how social media affects the way companies prepare for and engage in litigation, including the good, the bad and the ugly. This session will provide guidance about how you can make sure that your company’s social media use will not get the company into hot water. Presenters also will share helpful insights regarding what to do about social media when litigation is filed and identify the biggest social media in litigation hazards.

What the dot? Protecting your IP rights in a digital society

July 16

What do you get when you put together intellectual property, technology and social media? All too often, the end result of this concoction is a legal battle. This seminar will explore issues such as the impact of ICANN’s new generic top-level domain (gTLD) program and what it means for your web-based branding; whether companies that share news and information through social media are relinquishing IP rights; who, if anyone, owns all the user-generated content flying around cyberspace; and the latest on LinkedIn profiles, phishing scams and how you can protect yourself and your business online.

Preventing data leaks through workforce management

Aug. 13

In this Technology Age, businesses control large amounts of data. Though most businesses now have many technological safeguards in place, the risks do not just come from outside hackers or cybercriminals. Instead, studies show that a company’s own employees, whether intentionally or not, create one of the bigger risks of data leakage and loss. The consequences of data leakage also are greater than ever – whether the data relates to the company’s confidential business or trade secret information, its human resources information, or its customer information. Seminar speakers will explain that unless companies understand how to spot their data vulnerabilities, and properly train and supervise their workforces to guard against data leaks, even the most advanced technological cyber defense systems will not work.

Social media is everywhere, and many businesses are hatching plans to leverage it to grow popularity, customer base and revenue. And though you might think your hashtag contest or Facebook page is brilliant — if the FTC disagrees, it could cost you. Are you familiar with the numerous rules dictating how companies can portray themselves, and converse with current and prospective customers in a traditional context, on mobile devices and in social media? This seminar will cover issues that every business with a marketing plan should be aware of, including FTC and state regulations governing advertising, contests and sweepstakes, website privacy notices and more.

If you’d like to learn more about our upcoming seminar series, contact Porter Wright.

]]>Porter Wright to hold roundtable about “friend of the court” briefshttps://www.technologylawsource.com/2014/03/articles/porter-wright-news/porter-wright-to-hold-roundtable-about-friend-of-the-court-briefs/
Fri, 14 Mar 2014 10:00:27 +0000http://www.technologylawsource.com/?p=1380From time to time we share news about educational opportunities that may be of interest to our subscribers. Members of Porter Wright’s Appellate and Supreme Court practice will hold a roundtable April 8 to discuss the benefits of amicus advocacy before the Ohio Supreme Court.

Too often, the Ohio Supreme Court decides issues that affect an industry statewide without first hearing from the industry itself. Trade associations and companies can address this issue by filing “friend of the court” briefs. To learn more about how your organization can be part of this process, join Kathleen Trafford, Brad Hughes and Dennis Hirsch for a breakfast briefing. Using a roundtable format, they plan to cover the benefits of amicus advocacy, strategies for effective amicus advocacy and the rules governing “friend of the court” briefs.

From time to time we share news about educational opportunities that may be of interest to our subscribers. Members of Porter Wright’s Appellate and Supreme Court practice will hold a roundtable April 8 to discuss the benefits of amicus advocacy before the Ohio Supreme Court.

Too often, the Ohio Supreme Court decides issues that affect an industry statewide without first hearing from the industry itself. Trade associations and companies can address this issue by filing “friend of the court” briefs. To learn more about how your organization can be part of this process, join Kathleen Trafford, Brad Hughes and Dennis Hirsch for a breakfast briefing. Using a roundtable format, they plan to cover the benefits of amicus advocacy, strategies for effective amicus advocacy and the rules governing “friend of the court” briefs.

]]>SEC updates: Staying ahead of the regulatory curvehttps://www.technologylawsource.com/2013/06/articles/social-media-1/sec-updates-staying-ahead-of-the-regulatory-curve/
Thu, 27 Jun 2013 10:10:02 +0000http://www.technologylawsource.com/?p=766Our colleagues on the Federal Securities Law Blog have been tracking new and updated SEC regulations that are likely to have an impact on your business now and in the near future. The compilation of articles in their most recent eBook — SEC Updates: Staying Ahead of the Regulatory Curve — discuss three important SEC regulatory changes: whether companies that use social media to communicate with investors are complying with Regulation Fair Disclosure, compensation committee rules, and conflict minerals reporting.

Our colleagues on the Federal Securities Law Blog have been tracking new and updated SEC regulations that are likely to have an impact on your business now and in the near future. The compilation of articles in their most recent eBook — SEC Updates: Staying Ahead of the Regulatory Curve — discuss three important SEC regulatory changes: whether companies that use social media to communicate with investors are complying with Regulation Fair Disclosure, compensation committee rules, and conflict minerals reporting.

]]>Be careful what you sayhttps://www.technologylawsource.com/2013/06/articles/information-technology/be-careful-what-you-say/
Wed, 26 Jun 2013 18:50:00 +0000http://www.technologylawsource.com/?p=758This article was published originally at InsideCounsel.com. The article is the fourth in a six-part series focusing on evidence spoliation. Read more about previous posts. Technology Law Source will notify readers as InsideCounsel.com publishes additional articles in this series.

In its simplest terms, a legal hold (also known as a litigation hold, preservation order, suspension order, freeze notice, hold notice or hold order) is a process that an organization uses to preserve all forms of relevant information when litigation is reasonably anticipated, according to Shira A. Scheindlin and Daniel J. Capra, who wrote The Sedona Conference, Electronic Discovery and Digital Evidence. Legal holds can take many forms and may be initiated by individuals within and/or outside an organization. For example, a hold can be oral, written or electronic and may be implemented by company executives, in-house counsel, representatives from the human resources or information technology department or outside counsel.

No matter who or how a hold is implemented — issuing a proper hold is essential. The purpose of a legal hold is to inform all relevant personnel of their obligation to locate and preserve all information that may be pertinent to actual or threatened litigation. To accomplish this task, a legal hold must provide some type of description of the actual or anticipated proceeding, identify the scope and type of information to preserve, and specify the locations of the information to be preserved. The hold must also confirm that any applicable document destruction procedures or policies of an …

This article was published originally atInsideCounsel.com. The article is the fourth in a six-part series focusing on evidence spoliation. Read more about previous posts. Technology Law Source will notify readers as InsideCounsel.com publishes additional articles in this series.

In its simplest terms, a legal hold (also known as a litigation hold, preservation order, suspension order, freeze notice, hold notice or hold order) is a process that an organization uses to preserve all forms of relevant information when litigation is reasonably anticipated, according to Shira A. Scheindlin and Daniel J. Capra, who wrote The Sedona Conference, Electronic Discovery and Digital Evidence. Legal holds can take many forms and may be initiated by individuals within and/or outside an organization. For example, a hold can be oral, written or electronic and may be implemented by company executives, in-house counsel, representatives from the human resources or information technology department or outside counsel.

No matter who or how a hold is implemented — issuing a proper hold is essential. The purpose of a legal hold is to inform all relevant personnel of their obligation to locate and preserve all information that may be pertinent to actual or threatened litigation. To accomplish this task, a legal hold must provide some type of description of the actual or anticipated proceeding, identify the scope and type of information to preserve, and specify the locations of the information to be preserved. The hold must also confirm that any applicable document destruction procedures or policies of an organization must be appropriately suspended. A legal hold communication should also explain the ramifications of failure to comply with its directives.

While many legal hold notices begin with a template or form, each must be crafted to address the unique and distinct factual allegations anticipated to be at issue. The amount of information provided in a legal hold notice will depend on several factors—including, the number of recipients of the legal hold, the complexity of the issues in the legal proceeding, the type and format of the information to preserved and the likelihood that the information communicated in a legal hold will be discoverable.

In many situations issuing a single legal hold notice will not suffice. Instead, supplemental legal hold notices must be issued to fully comply with all preservation obligations. Courts have repeatedly held that counsel must oversee compliance with a legal hold, monitoring a party’s efforts to retain and produce relevant documents. See Zubulake v. UBS Warburg, LLC. Supplemental legal hold notices also ensure continued compliance with the legal preservation obligations. These supplemental notices may identify and include developments in the underlying proceeding, often identify additional or different custodians, and add to the type and source of information that should be preserved.

Generally, legal hold communications are not discoverable. Courts addressing the discoverability of legal hold notices have found that in most instances they are protected from discovery by the attorney-client privilege and/or work product doctrine. These protections apply because legal holds are typically issued by an attorney or at the direction of an attorney. While the entire legal hold notice will not be discoverable, courts often allow discovery on the issuance date of the legal hold, the hold recipients and the actions taken by recipients to preserve and collect information relevant to the underlying claims and defenses.

A party is usually entitled to know the categories of information covered by the legal hold for purposes of preservation and collection and how recipients were instructed to accomplish this task. As one district court explained, to the extent a party seeks to foreclose any inquiry into the contents of legal hold notices at deposition or through other means, such a position is not tenable. Specifically, a party may not be entitled to probe into what custodians are doing with respect to collecting and preserving ESI, but it is appropriate to allow discovery into what the employees are supposed to be doing. See In re eBay Seller Antitrust Litig.

Despite the general prohibition on production of legal hold notices in discovery, there are circumstances when legal hold notices themselves will be discoverable. This exception applies upon a preliminary showing of spoliation, which is the destruction or significant alteration of evidence or the failure to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation.

Only a handful of federal courts have addressed when an exception to the preclusion of discovery of legal hold notices will apply. In Major Tours v. Colorel, the district court acknowledged that legal hold notices are typically not discoverable but that a preliminary showing of spoliation may warrant an exception to this line of authority. There, evidence demonstrated defendants had waited nearly two years before attempting to comply with their preservation obligations and several witnesses did not know about the existence of a legal hold or its preservation obligations. The court found this evidence sufficiently demonstrated a preliminary showing of spoliation. No federal court appears to have defined the requisite showing for a preliminary elements of spoliation.

Other courts have reached different conclusions in determining what constitutes a sufficient showing of spoliation. For example, in Tracy v. NVR, Inc., the district court denied a request to compel production of litigation hold letters, questioning but not deciding whether a preliminary showing of spoliation required the same standard of proof as a motion for spoliation sanctions. The court side-stepped the issue finding no preliminary showing of spoliation had been made despite testimony showing ignorance of a legal hold and its requirements, because there was no evidence establishing that relevant documents had been improperly destroyed.

Overall, in preparing a legal hold notice counsel must be cognizant of the fact that it could be discoverable either in part or in its entirety. Therefore, counsel should carefully consider what information must be included in a legal hold notice to satisfy preservation obligations, but also be careful not to include information that may be privileged or constitute work product.

Striking the balance between protecting privileged information and appropriately informing legal hold recipients of their preservation obligations is a challenge. Our next piece will address the impact of cloud computing and social media outlets on a company’s duty to preserve.